that "circumstantial evidence is admissible to the corpus delicti, the same as to the other parts of the case, and the jury may find a verdict of guilty solely upon it, equally in murder and in all other crimes": Bishop, New Crim. Proced. §§ 1056, 1057. Mr. Best, in his work on Evidence (section 446), remarks: "Whether it is competent, even in extreme cases, to prove the basis of the corpus delicti by presumptive evidence, has been questioned. But it seems a startling thing to proclaim to every murderer that, in order to secure immunity to himself, he has nothing to do but consume or decompose the body by fire, or lime, or to sink it in an unfathomable part of the sea. Unsuccessful attempts of this kind are known to have been made, and successful ones may have remained undiscovered." Mr. Justice STORY, in United States v. Gilbert, 2 Sumn. 19 (Fed. Cas. No. 15,204), in speaking of the rule that there ought to be no conviction for murder unless the murdered body is found, says that it "certainly cannot be admitted as correct in point of common reason or of law, unless courts of justice are to establish a positive rule to screen persons from punishment who may be guilty of the most flagitious crimes." In a most copious and extensive note to State v. Williams (N. C.), 78 Am. Dec. 253, it is said by the learned editors of that work, after a reference to the rule that direct and positive evidence is not necessary to prove the corpus delicti, and the authorities in support thereof, that: "This rule is now clearly established, and it would be most unreasonable to always require direct and positive evidence. Crimes, especially those of the worst kind, are naturally committed at chosen times, in darkness and secrecy. Human tribunals must therefore act upon such indications as the circumstances of the case present or admit, or society must be broken up. The cases just cited show that the jury may find a verdict of guilty upon circumstantial evidence, and that the corpus delicti may be proved by such evidence, as well as any other part of the case, and that this rule applies in cases of murder and manslaughter, as well as in all other crimes. But a few courts have, by refined distinctions, qualified this doctrine slightly. Thus, in New York it was laid down, in the first instance by a divided bench, that in murder either the death or the criminal agency producing it must be proved by direct evidence; then the other may be proved by circumstantial evidence: Ruloff v. People, 18 N. Y. 179. The same thing was held as to the crime of murder or manslaughter in People v. Bennett, 49 N. Y. 137, but the court was divided. The better rule, however, is that either element of the corpus delicti or both may be proved by circumstantial evidence, and this is the one sustained by the weight of authority as shown by the cases above cited. But circumstantial evidence should be acted upon with great caution, especially where the public anxiety for the detection of a great crime creates an unusual tendency to exaggerate facts and draw rash inferences (Pitts v. State, 43 Miss. 472), because of all the various sources of error one of the most copious and fatal is an unreflecting faith in human testimony." The truth of this latter statement is shown by the instances cited by Mr. Justice MASON in his opinion in People v. Ruloff, 3 Parker, Cr. R. 401. To the doctrine of these cases and the rule thus stated we give our assent. The strict rule contended for by defendant would operate completely to shield a criminal from punishment for the most atrocious crime, and afford him absolute immunity if he were cunning enough to consume or destroy the body of his victim by fire or some chemical agency, or completely hide it away or otherwise destroy its identity, although the proof of his guilt might be of the most clear and convincing kind, and remove all possible doubt in the premises. The death of the person alleged to have been killed is a distinct ingredient in the case of the prosecution for murder or manslaughter, and must be established by direct testimony or presumptive evidence of the most cogent and irresistible kind. Great care in such a case should always be observed in acting upon presumptive or circumstantial evidence. No conviction should be had or allowed to stand on mere suspicion or conjecture alone. Whether the law will in any case permit a conviction for murder where no supposed remains or part of the remains of the person alleged to have been murdered have been found and there is no evidence of the body having been consumed by fire, chemicals, or the like, is not necessary for us to consider at this time. Where, as here, the entire circumstances point with one accord to the death of the person alleged to have been murdered, the finding of fragments of a human body or of metallic articles which are positively identified as part of the body of the alleged victim, or as articles worn by him, will be sufficient, if believed by the jury, to establish the fact of death, when this is the best evidence that can be obtained under the circumstances: People v. Alviso, 55 Cal. 230; McCulloch v. State, 48 Ind. 109; Commonwealth v. Webster, 5 Cush. 295 (52 Am. Dec. 711); State v. Williams, 52 N. C. 446 (78 Am. Dec. 248); Gray v. Commonwealth, 101 Pa. 380 (47 Am. Rep. 733). No universal and unvariable rule can be laid down in regard to the proof of the corpus delicti. Each case depends upon its own peculiar circumstances. The body of the crime may be proved by the best evidence which is capable of being adduced, if it is sufficient for the purpose. Such an amount of accompanying or relative facts, whether direct or circumstantial, must be produced as establish the fact beyond a moral certainty, and to the exclusion of every other reasonable hypothesis. There was sufficient evidence, without commenting upon it, in the case at bar, in our opinion, to establish the death of the alleged victim within the rules of law referred to. AFFIRMED. Decided 27 March, rehearing denied 3 July, 1905. 80 Pac. 112. MASTER AND SERVANT-INJURY-FAILURE TO RECALL DANGER-CONTRIBU- 1. Where a servant is suddenly called upon to perform a service requiring prompt and energetic action he cannot as a matter of law be charged with contributory negligence in failing to remember a defect in the machinery he must handle, or a particular danger connected with the work, even though he may previously have known of them. IDEM. 2. The fact that a servant has knowledge of a danger is not conclusive of negligence in failing to avoid it, but that fact imports negligence only when the danger was of such a character that a man of ordinary prudence and caution would have refused to incur it in the performance of his duties. From Multnomah: ALFRED F. SEARS, JR., Judge. Action by Henry Viohl against the North Pacific Lumber Company. From a judgment for defendant, plaintiff appeals. REVERSED. For appellant there was a brief over the name of Chamberlain & Thomas, with an oral argument by Mr. Warren E. Thomas. For respondent there was a brief over the names of William D. Fenton and Rufus A. Leiter, with an oral argument by Mr. Leiter. MR. JUSTICE BEAN delivered the opinion of the court. This is a personal injury action. The plaintiff, while working for the defendant in its sawmill, was caught in a cogwheel gearing and injured. He brought this action to recover damages, alleging that defendant was negligent, among other things, in allowing the lower part of the cogwheels to be uncovered, and in ordering and directing him to work in close proximity thereto while they were in such condition, without cautioning or warning him of the danger. The defense is a denial of negligence, and a plea of assumption of risk and contributory negligence. On the trial the plaintiff was nonsuited, and he appeals. The facts, so far as necessary for the present purposes, are as follows: The plaintiff at the time of the injury was about 21 years old, and had been at work for defendant about six weeks. He had had no previous experience in sawmills, and but little, if any, at work in or about machinery. He was not employed for any particular purpose, but was a common laborer in the mill, and was first put to work behind the edger, off-bearing. Four or five feet from the place where he was thus required to work was a set of live rolls, extending through the mill, and past the place where he was working, which were used in carrying lumber from the main saw to the edger, and slabs to the cut-off saw, further on. These rolls were driven by a long shaft, upon which were placed at intervals cogwheels which meshed into similar wheels on the ends of the rolls. One set of these cogwheels was about opposite, or perhaps a little behind, the place where the off-bearer from the edger was required to stand while at work. The top of these wheels was covered by an iron casting, but the lower part was uncovered, and about 10 inches from the floor. Between the apron or table of the edger and the line of rolls referred to were skids, upon which the off-bearers from the edger threw the slabs and trimmings, which were then taken up by other persons and thrown across the line of rolls to the slasher or slab saw. The plaintiff, when first employed, worked behind the edger, off-bearing, for seven or eight days, standing four or five feet from the cogs in question. He was then put to work elsewhere in the mill for a time, and then back to the edger for another three or four days. From that time until the day of the accident he worked at various places in the mill, as directed, but not at the edger. On the morning of the accident he was put to work at the cut-off saw, and while so working the slasher broke down and remained idle for about half an hour. The edger continued operation, however, and slabs and trimmings from it accumulated on the skids and rolls, covering the cogwheels referred to. After the slasher had been repaired, plaintiff was ordered by the foreman to leave his work at the cut-off saw, and assist some other employees in removing and clearing them away. While so engaged his foot slipped, and his heel caught in the cogwheels and was injured. These cogwheels were visible a part of the time while he was off-bearing from the edger, and a part of the time were covered with rubbish and debris. It is probable (though the evidence is not very clear on that point) that he knew they were not entirely covered, but he says his attention was so confined to his work he did not have time to observe them closely. 1. It is not seriously controverted, as we understand it, that there was evidence sufficient, if believed by the jury, to show that the defendant was negligent in leaving the cogwheels uncovered near where its employees were required to work. The contention is that the danger therefrom was open, visible, known to and appreciated by the plaintiff, and therefore he was guilty of contributory negligence at the time of his injury in not looking for or remembering the location of the wheels, and allowing his foot to come in contact therewith. The service being performed by the plaintiff at the time of the accident was not in the regular course of his employment, or, indeed, that of any other workman in the mill. It was an unusual condition, due to the breaking down of the slasher, causing the slabs, etc., to accumulate in and over the cogwheels. The plaintiff and others were, by order of the master, taken from their usual work, and set to removing the |